PrivilegeWatch: Do not taunt Happy Fun Parliament.
By Kady O'Malley
Defence Minister Peter MacKay would be ordered to "explain the meaning and intent" of his December 1 statement in the House of Commons, which, in the words of the motion, "purports to question the powers and privileges of the House and has a tendency, directly or indirectly, to obstruct or impede the House and its Members in the performance of their functions, by misleading or intimidating potential witnesses at our committees,"; acknowledge said powers and privileges, and agree that "any legal or other punitive action taken against a committee witness would constitute a contempt of Parliament." If he fails to do so "to the satisfaction of the Speaker," he would be "admonished and reprimanded by the Speaker for his misconduct and contempt of Parliament."
Associate Deputy Minister of Justice Carolyn Kobernick would be called to the Bar of the House to explain "the meaning and intent of the legal opinion" that was sent to House Law Clerk Rob Walsh under her name on December 9th, 2009 -- which, like MacKay's statement, allegedly "purports to question the privileges of the House" -- and, also like MacKay, would acknowledge the powers and privileges of the House, and that any action taken against a witness would constitute contempt," and would also face admonishment and reprimanding if she failed to meet the Speaker's satisfaction. (Interestingly, the motion allows for the possibility that Justice Minister Rob Nicholson might want to appear in her stead, in which case he would be the one doing the acknowledging.)
Finally, the government would have seven days to turn over all detainee-related documentation that were requested by the Afghanistan committee last fall, after which point the Speaker would issue a warrant instructing the Sargent-at-Arms to seize the records, with the stipulation that any material that would otherwise be protected from disclosure by the Security of Information Act would be segregated and dealt with by the committee in camera to prevent public exposure.
(Wow, that was so much less .. gist-y than I was hoping. Sorry about that -- at least I spared you a few whereases, right?)
Here's the full text of the proposed motion -- which, I should note again, is a draft version, and still undergoing review, which means the version that eventually airs in the Commons may be slightly -- or even significantly -- different :
Whereas the House has taken notice of three distinct matters which have called into question or appear to be attempts to derogate from the ancient and undoubted powers and privileges of this House to send for persons, papers and records, and have a tendency, directly or indirectly, to obstruct or impede the House and its Members in the performance of their functions, all in relation to the work of the Special Committee on the Canadian Mission in Afghanistan in the 2nd Session of this Parliament;MOVED THAT1. The Hon. Member for Central Nova and Minister of National Defence, the Hon. Peter Mackay, a Member of this House, be ordered to attend in his place forthwith or at a time to be determined by the Speaker, to explain the meaning and intent of his statement in this House on December 1, 2009 (at ref.1540) which purports to question the powers and privileges of the House and has a tendency, directly or indirectly, to obstruct or impede the House and its Members in the performance of their functions, by misleading or intimidating potential witnesses at our committees; and to acknowledge the powers and privileges of this House to send for persons, papers and records, and that such powers and privileges are not diminished, prejudicially affected or repealed except by an express provision of a statute to that effect; and to acknowledge that any legal or other punitive action taken against a committee witness would constitute a contempt of Parliament; and that if the Hon. Member fails to do so to the satisfaction of the Speaker, then the Hon. Member shall be admonished and reprimanded by the Speaker for his misconduct and contempt of Parliament (or: the Speaker forthwith report to the House the Honourable Member's failure to comply with this order and the reasons given, if any, for the failure to comply).2. Carolyn Kobernick, the Assistant Deputy Minister of Justice, Public Law Sector, be called to the Bar of the House, or alternatively at his own instance by giving notice to the Speaker, the Minister of Justice in place of Carolyn Kobernick be called to stand in his place, in either case in the presence of the Speaker forthwith or at a time to be determined by the Speaker to explain the meaning and intent of the legal opinion written by the said Assistant Deputy Minister of Justice to our Law Clerk and Parliamentary Counsel on December 9, 2009, which opinion purports to question the privileges of the House and has a tendency, directly or indirectly, to obstruct or impede the House and its Members in the performance of their functions, by misleading or intimidating potential witnesses who are public servants, as well as members of the public, at our committees; and to acknowledge the powers and privileges of this House to send for persons, papers and records, and that such powers and privileges are not diminished, prejudicially affected or repealed except by an express provision of a statute to that effect; and to acknowledge that any legal or other punitive action taken against such witnesses would constitute a contempt of Parliament; and if she or he is unwilling or fails to do so fully to the satisfaction of the Speaker, then he or she shall be admonished and reprimanded by the Speaker for misconduct and contempt of Parliament. (or: the Speaker forthwith report to the House the Honourable member's failure to comply with this order and the reasons given, if any, for the failure to comply).3. The Sergeant-at-Arms be instructed by this House under the direction of the Speaker to obtain forthwith for the use of the Special Committee on the Canadian Mission in Afghanistan, when reconstituted, all the documentation specified in the order of the House concerning the Business of Supply on December 10, 2009 (Journals #128) by and after written request or, in case of a refusal or obstruction or any other non-compliance, and in any event after seven days from this day, by seizure; but if any such document or part thereof shall be claimed by its custodian to be subject to disclosure restrictions under the provisions of the Security of Information Act, then those documents or the copies thereof be segregated from the other documents obtained, if any, and all the documents obtained be made available to the Members of the Special Committee on the Canadian Mission in Afghanistan; provided that documents that are segregated be provided to the Special Committee using such procedures that ensure protection from public disclosure, unless the Speaker finds the disclosure restriction is not justified, and such procedures to be administered by the Clerk under the direction of the Speaker; and the Sergeant-at-Arms and the Clerk of the Special Committee jointly maintain a record, including a list, of all documents obtained, copied, destroyed or returned under the direction of the Speaker, and the Chair of the said Committee and its Members be bound by such directions; and the Speaker do issue such warrants and directions as he considers necessary or expedient in aid of this order.4. This order and any House vote or division or procedures taken in relation to it are exercises of the powers and privileges of this House and are not and shall not be taken to be an expression of confidence or non-confidence in the Government by this House. 5. That an Humble Address be presented to Her Excellency the Governor General praying that she take notice of the order of the House made this day to exercise its powers and privileges as aforesaid. That the Address be engrossed and presented to Her Excellency the Governor General by the House Leaders of the Government and the Official Opposition.
